How To Protect Your Property Against Prescriptive Easements

Do you have a neighbor who regularly crosses your property for some reason, or perhaps does something such as park his car on your property?  Do you worry about the impact such a use may have on your property rights?  You should.

What is a Prescriptive Easement?

New Hampshire recognizes prescriptive easements.  An easement holder has no rights to possess the land over which they hold the easement but does have the right to make certain uses of that land.  Some easements are express such as created by deed.  A prescriptive easement is a different animal.  A prescriptive easement arises without any written instrument based on someone’s performance.  That is, when a person makes an adverse, continuous, uninterrupted use of another’s land for a period of 20 years.  Once the prescriptive easement ripens, the property owner has no choice but to allow the easement holder to continue the use of the property owner’s land indefinitely.

How to Prevent a Prescriptive Easement?

There are several ways for a property owner to prevent a prescriptive easement from arising over his property.  The property owner can block the use before the 20-year prescriptive period runs.  Alternatively, if the property owner wishes to be neighborly and to allow the use, but does not wish to give up rights in his land, the property owner can expressly permit the use.  The granting of permission prevents the user from showing that the use was adverse—an essential element for a prescriptive easement.  Permissive use can never give rise to prescriptive rights.

If you are facing a dispute involving property rights, you should consult a lawyer experienced in litigating such issues.  Benjamin T. King of Douglas, Leonard & Garvey can be reached at (603) 288-1403 or fill out our online contact form.

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